Karen and Bradley listen to and discuss Till Jaeger's talk from FOSDEM 2013, entitled What is a derivative work under European Copyright Law?.

Show Notes:

Segment 0 (00:00:31)

Karen and Bradley introduce the talk.

Segment 2 (00:02:41)

The speaker's that you hear are:

• Tom Marble, introduces the talk, and asks one of the questions.
• Till Jaeger, who gives the talk

The slides for Till Jaeger's talk are available.

Segment 2 (00:49:11)

• Bradley and Karen discuss Till's talk.
• Clarence Thomas spoke the first time in the Supreme Court. Bradley said that he said it did not, but apparently he actually said he did not. (59:49)
• Bradley scanned in his Brussels airport train ticket that had his notes on it, where you can read noa push caa. (01:06:40)
• Bradley mentioned the phrase Elvis has left the building. (01:07:15)

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Send feedback and comments on the cast to <oggcast@faif.us>. You can keep in touch with Free as in Freedom on our IRC channel, #faif on irc.freenode.net, and by following Conservancy on on Twitter and and FaiF on Twitter.

Free as in Freedom is produced by Dan Lynch of danlynch.org. Theme music written and performed by Mike Tarantino with Charlie Paxson on drums.

The content of this audcast, and the accompanying show notes and music are licensed under the Creative Commons Attribution-Share-Alike 4.0 license (CC BY-SA 4.0).

Bradley and Karen discuss Conservancy's Debian Copyright Aggregation project. (Note: While it was released just after DebConf16, this episode was recorded well before DebConf16; the discussions about DebConf refer to DebConf15.)

Show Notes:

Segment 0 (00:38)

Note: While it was released just after DebConf16, this episode was recorded well before DebConf16; the discussions about DebConf refer to DebConf15.

• Bradley mentioned his talk at DebConf. This was recorded before DebConf 16, so Bradley is talking about DebConf 15, which was summarized in this blog post and his keynote from DebConf15. A video of that talk is available. (02:00)
• Bradley mentioned this bug about the copyright notice on the Debian website (07:47)
• Ian Jackson asked about bequeathing copyright at Bradley's talk. (15:45)

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Send feedback and comments on the cast to <oggcast@faif.us>. You can keep in touch with Free as in Freedom on our IRC channel, #faif on irc.freenode.net, and by following Conservancy on on Twitter and and FaiF on Twitter.

Free as in Freedom is produced by Dan Lynch of danlynch.org. Theme music written and performed by Mike Tarantino with Charlie Paxson on drums.

The content of this audcast, and the accompanying show notes and music are licensed under the Creative Commons Attribution-Share-Alike 4.0 license (CC BY-SA 4.0).

Many Western governments continue to struggle with free speech. It’s not that they’re necessarily against it, it’s just that they don’t know how to effectively regulate out the offensive stuff.

EMI UNIVERSAL MUSIC GROUP ASCAP CURROPTION

Savastano Will Oversee Audits, Royalty Collection And Processing, Licensing, Copyright Issues, And All Other Copyright And Royalty Duties.

Six months ago, which feels like roughly an eternity at this point, we discussed how Jerry Seinfeld and others won an absolutely ludicrous copyright suit filed against them by Christian Charles, a writer and director Seinfeld hired to help him create the pilot episode of Comedians In Cars Getting Coffee. What was so strange about the case is that this pilot had been created in 2012, whereas the lawsuit was only filed in 2018. That coincides with Seinfeld inking a lucrative deal with Netflix to stream his show.

It's not the most well known aspect of copyright law, but there is, in fact, a statute of limitations for copyright claims and it's 3 years. The requirement in the statute is that the clock essentially starts running once someone who would bring a copyright claim has had their ownership of a work disputed publicly, or has been put on notice. Seinfeld argued that he told Charles he was employing him in a work-for-hire arrangement, which would satisfy that notice. His lawyers also pointed out that Charles goes completely uncredited in the pilot episode, which would further put him on notice. The court tossed the case based on the statute of limitations.

For some reason, Charles appealed the ruling. Well, now the Court of Appeals has affirmed that lower ruling, which hopefully means we can all get back to not filing insane lawsuits, please.

We conclude that the district court was correct in granting defendants’ motion to dismiss, for substantially the same reasons that it set out in its well-reasoned opinion. The dispositive issue in this case is whether Charles’s alleged “contributions . . . qualify [him] as the author and therefore owner” of the copyrights to the show. Kwan, 634 F.3d at 229. Charles disputes that his claim centers on ownership. But that argument is seriously undermined by his statements in various filings throughout this litigation which consistently assert that ownership is a central question.

Charles’s infringement claim is therefore time-barred because his ownership claim is time-barred. The district court identified two events described in the Second Amended Complaint that would have put a reasonably diligent plaintiff on notice that his ownership claims were disputed. First, in February 2012, Seinfeld rejected Charles’s request for backend compensation and made it clear that Charles’s involvement would be limited to a work-for-hire basis. See Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 318 (2d Cir. 2013) (noting that a copyright ownership claim would accrue when the defendant first communicates to the plaintiff that the defendant considers the work to be a work-for-hire). Second, the show premiered in July 2012 without crediting Charles, at which point his ownership claim was publicly repudiated. See Kwan, 634 F.3d at 227. Either one of these developments was enough to place Charles on notice that his ownership claim was disputed and therefore this action, filed six years later, was brought too late.

And that should bring this all to a close, hopefully. This seems like a pretty clear attempt at a money grab by Charles once Seinfeld's show became a Netflix cash-cow. Unfortunately, time is a measurable thing and his lawsuit was very clearly late.

Posting videos on YouTube can be a great way to show off your video editing skills, post video blogs, or even your own mini series. Because YouTube is the largest video sharing site it’s also a great way to promote products, or your website to thousands new potential viewers. But what happens when you post a video and it’s either slapped with a copyright infringement or banned all together, and what are the consequences to your account?

New beginnings at WIPO  On March 4, Daren Tang was nominated director general of the World Intellectual Property Organization (WIPO), the United Nations agency dealing with intellectual property matters. Tang is currently the chief executive of the Intellectual Property Office of Singapore (IPOS) and his six-year term as top WIPO official will start on October … Read More "Does WIPO’s New Leadership Have the Vision to Shake Up Global Copyright Policy-Making?"

The post Does WIPO’s New Leadership Have the Vision to Shake Up Global Copyright Policy-Making? appeared first on Creative Commons.

MUSIC SAMPLING: "Musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music."

Legal research giant Thomson Reuters has filed a lawsuit against legal research start-up ROSS Intelligence alleging that it surreptitiously stole content from Westlaw to build its own competing legal research product. Thomson Reuters lawsuit against ROSS comes just two days after it ended a related lawsuit against Legal Ease. In that stipulation, LegalEase agreed to an injunction that prevents it from reproducing Westlaw content, using bots to access content, and sharing its Westlaw credentials

The Police Intellectual Property Crime Unit (PIPCU) has arrested a man on suspicion of providing access to websites which have been subject to a legal blocking order. The man is accused of operating an ‘umbrella’ website that allows user...

Précis New EU copyright directive entered into force on 7 June 2019, ushering in new EU copyright rules, bringing radical changes to the EU copyright regime. Member states have until 7 June 2021 to implement the new directive. Background The Europea...

Four individuals were indicted today by a federal grand jury in the Eastern District of Virginia with conspiracy to commit copyright infringement for allegedly obtaining and illegally releasing copyrighted music.

A New York man pleaded guilty today in U.S. District Court in Alexandria, Va., to criminal copyright infringement for selling more than $250,000 worth of pirated copies of popular business, engineering and graphic design software programs.

Robert Cimino, 60, of Syracuse, N.Y., was sentenced to 18 months in prison by U.S. District Judge Anthony J. Trenga in the Eastern District of Virginia for his sales of more than $250,000 worth of pirated software.

A federal grand jury has returned an indictment in Alexandria, Va., charging five individuals with one count of conspiracy and five substantive copyright infringement counts for their involvement with the Internet website NinjaVideo.net.

Matthew David Howard Smith pleaded guilty today for his role in founding a website that provided millions of users with the ability to illegally download copyright-protected movies and television programs.

Hana A. Beshara, 29, of Las Vegas, pleaded guilty today for her role in founding NinjaVideo.net, a website that provided millions of users with the ability to illegally download infringing copies of copyright-protected movies and television programs in high-quality formats.

Joshua David Evans, 34, of North Bend, Wash., and Jeremy Lynn Andrew, 33, of Eugene, Ore., pleaded guilty today for their roles in NinjaVideo.net, a website that provided millions of users with the ability to illegally download infringing copies of copyright-protected movies and television programs in high-quality formats.

Justin A. Dedemko, 28, of Brooklyn, N.Y., pleaded guilty today before U.S. District Judge Anthony J. Trenga in the Alexandria Division of the Eastern District of Virginia.

The seven-count indictment alleges that Michael Moore, 44, of Chadds Ford, Penn., infringed the copyright protected works during seven six-month periods between May 2006 and June 2010.

Hana Amal Beshara, 30, of North Brunswick, N.J., was sentenced by U.S. District Judge Anthony J. Trenga in the Eastern District of Virginia.

Seven individuals and two corporations have been charged in the United States with running an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works, through Megaupload.com and other related sites, generating more than $175 million in criminal proceeds and causing more than half a billion dollars in harm to copyright owners.

Matthew David Howard Smith, 24, of Raleigh, N.C., was sentenced today in Alexandria, Va., to 14 months in prison for his role in founding NinjaVideo.net, a website that provided millions of users with the ability to illegally download high-quality copies of copyright-protected movies and television programs.

Sean M. Lovelady, 28, of Pomona, Calif., pleaded guilty to one count of conspiracy to commit criminal copyright infringement.

A Pennsylvania man pleaded guilty today to conspiring to willfully reproduce and distribute tens of thousands of infringing copies of copyrighted works without permission, including infringing copies of movies before they were commercially released on DVD, Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division, U.S. Attorney for the Eastern District of Virginia Neil H. MacBride and Special Agent in Charge John P. Torres of U.S. Immigration and Customs Enforcement Homeland Security Investigations (ICE-HSI) in Washington, D.C., announced today.

A New York man pleaded guilty today to conspiring to willfully reproduce and distribute tens of thousands of infringing copies of copyrighted works without permission, including infringing copies of movies before they were commercially released on DVD.

Jeramiah B. Perkins, 39, of Portsmouth, Va., pleaded guilty to one count of conspiracy to commit criminal copyright infringement.

Willie Lambert, 57, of Pittston, Pa., was sentenced today by U.S. District Judge Arenda L. Wright Allen in the Eastern District of Virginia to serve 30 months in prison, three years of supervised release and $449,514 in restitution, jointly and severally with co-defendants. Sean M. Lovelady, 28, of Pomona, Calif., was sentenced today by Judge Wright Allen to 23 months in prison, three years of supervised release and $7,500 in restitution.

A third member of the Internet piracy group “IMAGiNE” was sentenced today to 40 months in prison, and a fifth member of IMAGiNE pleaded guilty today for his role in the conspiracy.

The leader of the Internet piracy group “IMAGiNE” was sentenced today to serve 60 months in prison.

A member of the Internet piracy group “IMAGiNE” was sentenced today to serve 23 months in prison.

Star Wars & VELUX Galactic Night Collection Copyright: VELUX Group

Star Wars & VELUX Galactic Night Collection Copyright: VELUX Group

Posted by Victoria Strauss for Writer Beware®

The enormous digital archive that is the Internet Archive encompasses many different initiatives and projects. One of these is the Open Library Project, a huge repository of scanned print books available for borrowing in various digital formats.

Unlike a regular library, the IA does not purchase these books, but relies on donations to build the collection. Nor are permissions sought from copyright holders before creating the new digital editions. And although the IA claims that the project includes primarily 20th century books that are no longer widely available either physically or digitally, the collection in fact includes large numbers of 21st century books that are in-copyright and commercially available--and whose sales the Open Library's unpermissioned versions have the potential to harm.

Most professional writers' groups consider the Open Library to be not library lending, but massive copyright violation. Many have issued alerts and warnings (you can see SFWA's alert here), and many authors have contacted the IA with takedown requests (to which the IA was not always terrific at responding; you can see my account of my own frustrating experience here).

In the fall of 2018, a novel (and disputed) legal theory was created to justify the Open Library and similar initiatives, called Controlled Digital Lending (CDL). CDL's adherents present it as "a good faith interpretation of US copyright law for American libraries" seeking to conduct mass digitization projects, and invoke as support the "exhaustion" principle of the first sale doctrine (the idea that an authorized transfer of a copyrighted work "exhausts" a copyright holder's ability to subsequently control the use and distribution of  that copy; this is what allows used book sales, for example) and the fair use doctrine (a complex principle that permits the copying of a copyrighted work as long as the copying is limited and transformative). As long as the library restricts its lending in ways similar to restrictions on the lending of physical books (for instance, allowing only one user at a time to access each digital format), CDL holds that creating new digital editions of in-copyright books and lending them out is fair use, and copyright holders' permission isn't necessary.

Libraries in particular have embraced CDL. Publishers' and writers' groups...not so much, especially in light of a recent legal decision that rejected both the first sale doctrine and fair use as basis for re-selling digital content. Here's the Authors Guild:

CDL relies on an incorrect interpretation of copyright’s “fair use” doctrine to give legal cover to Open Library and potentially other CDL users’ outright piracy—scanning books without permission and lending those copies via the internet. By restricting access to one user at a time for each copy that the library owns, the proponents analogize scanning and creating digital copies to physically lending a legally purchased book. Although it sounds like an appealing argument, the CDL concept is based on a faulty legal argument that has already been rejected by the U.S. courts.

In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. It found that market harm was likely because the lower-priced resales were sold to the same customers who would have otherwise purchased new licenses. In this regard, the court emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.

The same rationale applies to the unauthorized resale or lending of ebooks. Allowing libraries to digitize and circulate copies made from physical books in their collection without authorization, when the same books are available or potentially available on the market, directly competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.

For a more detailed deconstruction of CDL's arguments, see this statement from the Association of American Publishers.

Flash forward to 2020, and the coronavirus pandemic crisis. Last week, the IA announced the debut of the National Emergency Library--really just the Open Library, but with some new provisions.

To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.

What this boils down to, under all the high-flying verbiage: the IA is ditching the one-user-at-a-time restriction that is one of the key justifications for the theory of controlled digital lending, and allowing unlimited numbers of users to access any digitized book in its collection.

The Authors Guild again, on how this harms authors:

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.

Here's just one concrete example. Katherine Harbour's Nettle King is available for borrowing in the National Emergency Library as a scan, an EPUB, and a PDF (the IA's EPUB versions are OCR conversions full of errors). Published in 2016, it's also "in print" and available on Amazon and other online retailers as an ebook, in addition to other formats. The IA, which never bought a digital license to Ms. Harbour's book and scanned and uploaded it without permission, now is proposing to allow unlimited numbers of users to access it, potentially impacting her sales. How is this any different from a pirate site?

Announcement of the National Emergency Library has been greeted rapturously by the press and by libraries. Less regarded has been the flood of protest and criticism from authors and professional groups. In situations like these, authors and publishers tend to be dismissed as greedy money-grubbers who are putting profits ahead of the march of progress and the noble dream of universal access to content...despite the fact that authors' right to make money from their work--and, just as important, to control the use of it--springs directly from the US Constitution, and has been enshrined in law since 1790.

In response to the outcry over the National Emergency Library, the IA has issued a justification of it, citing the "tremendous and historic outage" of COVID-19-related library closures, with "books that tax-paying citizens have paid to access...sitting on shelves in closed libraries, inaccessible to them." This noble-sounding purpose conveniently ignores the fact that those libraries' (legally-acquired and paid-for) digital collections are still fully available.

If your book is included in the National Emergency Library, and you don't want it there, the IA will graciously allow you to opt out (another inversion of copyright, which is an opt-in system).


Hopefully they'll be more responsive than they were in 2018, when I sent them DMCA notices that they ignored. Or later, when they began rejecting writers' takedown requests by claiming that the IA "operates consistently with the Controlled Digital Lending protocol.”


I've covered this question above, but I want to highlight it again, because it's such a persistent objection when this kind of infringement occurs: Brick-and-mortar libraries lend out books for free, so how are the IA's "library" projects any different?

A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new or additional, un-permissioned lending formats. That's exactly what the IA does. Moreover, one of its additional lending formats is riddled with OCR errors that make them a chore to read. Apart from permission issues, this is not how authors want their books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its library projects.

UPDATE: It appears that the IA--on its own initiative--is removing not just illegally-created digital editions in response to authors' takedown requests, but legally-created DAISY editions as well, even where authors don't ask for this (DAISY is a format for the visually impaired, and like Braille, is an exception in copyright law and is also permissioned in publishing contracts).


It did the same thing in 2018, even where the takedown requests specifically exempted DAISY editions. I don't know if the current removals reflect expediency or possibly are just a kind of FU to writers (and, indirectly, to disabled readers), but if you send a removal request to the IA, you might consider specifically asking them not to remove any editions for the blind and disabled (which, again, are legal for the IA to distribute).

UPDATE 4/2/20: The Authors Guild has issued a statement encouraging writers to demand that the Internet Archive remove their books from its National Emergency Library. The statement includes instructions on what to do, along with a sample DMCA notice in the proper legal form.

UPDATE 4/8/20: SFWA has issued a statement on the National Emergency Library, describing the legal theory of Controlled Digital Lending as "unproven and dubious". (A link to SFWA's DMCA notice generator is included.)

[U]sing the Coronavirus pandemic as an excuse, the Archive has created the “National Emergency Library” and removed virtually all controls from the digital copies so that they can be viewed and downloaded by an infinite number of readers. The uncontrolled distribution of copyrighted material is an additional blow to authors who are already facing long-term disruption of their income because of the pandemic. Uncontrolled Digital Lending lacks any legal argument or justification.

UPDATE 4/9/20: The Chairman of the US Senate Subcommittee on Intellectual Property, Thom Tillis, has sent a letter to the Internet Archive, pointing out the many voluntary initiatives by authors, publishers, and libraries to expand access to copyrighted materials, and expressing concern that this be done within the law. 

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has the jurisdiction to amend.

The letter ends by punting "discussion" until "some point when the global pandemic is behind us." So, basically, carry on and maybe at some point we'll talk.

UPDATE 4/15/20: Internet Archive founder Brewster Kahle has responded to Sen. Tillis's letter, claiming that the National Library is needed because "the entire physical library system is offline and unavailable" (even though libaries' legally acquired digital collections are still fully available) and that "the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances" (there's no such language in the actual Fair Use statute).

Kahle also notes:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

But this is hardly a compelling argument. Large numbers of these books are certainly still in copyright, and many are likely still "in print" and commercially available (in digital form as well as hardcopy). Just because a book was published more than ten years ago or prior to 2000 doesn't magically cause it to become so hard to find it must be digitized without permission in order to save it. "But they're older books" sidesteps, rather than addresses, the thorny copyright issues raised by the IA's unpermissioned scanning and digitizing.

This passage also tacitly confirms the IA's abandonment of the one-user-at-a-time restriction that is a key feature of the rationale for the Controlled Digital Lending theory. If the basis for your enterprise is a legal theory whose strictures can be jettisoned at will, how credible is that theory really?

Kahle also claims that "No books published in the last five years are in the National Emergency Library". As it happens, the example I provide above (Katherine Harbour's Nettle King) handily disproves this statement: it was published in 2016, and was digitized by the IA in 2018 (you can see the scan here). I seriously doubt it's the only instance. Either Kahle is being disingenuous, or he doesn't know his own collection.

As a sop to creators, Kahle reiterates that concerned authors "need only to send us an email" and their books will be removed. As I've pointed out above, this is yet another inversion of copyright law, which explicitly gives creators control over the use of their work. In other words, it's the IA, not authors, who should be the petitioners here.

UPDATE 4/16/20: This terrific, comprehensive article from the NWU's Edward Hasbrouck examines the multiple ways the Internet Archive is distributing the page images from its unpermissioned scanning of print books--"[o]nly one of [which] fits the Internet Archive’s and its supporters’ description of so-called Controlled Digital Lending (CDL)."

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Perry, along with producer Lukasz 'Dr. Luke' Gottwald and Capitol Records, were relieved of paying $2.8 million in an ongoing suit filed by a Christian rapper.

Podcasting has a very low barrier to entry; all you need is audio recording software and a means of creating an RSS feed, be it through software or manual work. As a result, just about anyone can podcast, and the quality of podcasts is therefore highly variable; there are professional podcasts that rival professional broadcasts in quality, and there are amateur podcasts that can not even be heard clearly. For this reason, copyright infringement leeches, often unwittingly, into a number of podcasts. To produce a successful podcast, it is important to understand and respect Western copyright laws. To help ensure that these things are done, we have compiled some information about podcasts, music, and copyright law.

Podcasts and Copyrights

Podcasting has a very low barrier to entry; all you need is audio recording software and a means of creating an RSS feed, be it through software or manual work. As a result, just about anyone can podcast, and the quality of podcasts is therefore highly variable; there are professional podcasts that rival professional broadcasts in quality, and there are amateur podcasts that can't even be heard clearly. For this reason, copyright infringement leeches, often unwittingly, into a number of podcasts. To produce a successful podcast, it is important to understand and respect Western copyright laws. To help ensure that these things are done, we have compiled some information about podcasts, music, and copyright law.

Podcasts and Copyrights

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Australia. Parliament. Senate. Environment and Communications Legislation Committee, author, issuing body

The public will have the opportunity to provide input to the Library of Congress on expertise needed by the next Register of Copyrights, the Librarian of Congress, Carla Hayden, announced today.

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Dewey Library - K1420.5.M44 2018

Barker Library - KF2995.C576 2020